DEREK MC DOUGALL, Employee
THE SIMMONS MFG CO LLC, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.
The decision of the administrative law judge is affirmed. Accordingly, the employee is eligible for benefits, if otherwise qualified.
Dated and mailed March 15, 2005
mcdoude . usd : 105 : 1 MC 652.1
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission has affirmed the appeal tribunal decision in this matter, because it agrees with the administrative law judge's conclusion of no misconduct. The employer's rules allow for drug testing when an employee "is involved in an accident resulting in injuries requiring medical treatment off site." The only evidence regarding the employee's arm is that it was swelling up and causing him pain, however. This is insufficient to establish that the employee had been involved in an accident, allowing the employer to drug test the employee under its own rules. None of the employer's criteria for drug testing, such as reasonable cause or suspicion, were shown to exist, either, so the employer had no legitimate basis under its own rules for drug testing the employee. Absent such a basis, however, the employer has no basis for holding the positive test against the employee.
For these reasons, and for those stated in the appeal tribunal decision, the commission has affirmed that decision.
cc:
The Simmons Mfg. Co. (Janesville, Wisconsin)
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uploaded 2005/03/25